Arakas v. Comm’r of Soc. Sec., 983 F.3d 83 (4th Cir. 2020) (Decision by Circuit Judge Wynn, in which Chief Judge Gregory and Circuit Judge Harris joined)

Arakas v. Comm’r of Soc. Sec., 983 F.3d 83 (4th Cir. 2020) (Decision by Circuit Judge Wynn, in which Chief Judge Gregory and Circuit Judge Harris joined)

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Briefs for purchase:

  • Brief of the Appellant
  • Appellant’s Reply Brief 

Issues briefed:

  1. 1)  The ALJ’s reasons for according “little weight” to the opinion of Dr. Harper,

    Appellant’s long time treating rheumatologist, are not supported by substantial evidence.

  2. 2)  The ALJ reversibly erred by failing to properly assess the severity of Appellant’s subjective complaints of pain and fatigue.

Court decision:

In a fibromyalgia case of first impression, the Fourth Circuit reversed and remanded for an award of benefits, agreeing that the ALJ erred in discrediting Appellant’s subjective complaints of pain and fatigue (“fibromyalgia, degenerative disc disease, and carpal tunnel syndrome have been the primary sources of her symptoms”) and in according little weight to the opinion of her treating physician. Id. at 89, 92. The Fourth Circuit joined other circuits in recognizing the unique nature of fibromyalgia:

A growing number of circuits have recognized fibromyalgia’s unique nature and have accordingly held that ALJs may not discredit a claimant’s subjective complaints regarding fibromyalgia symptoms based on a lack of objective evidence substantiating them. See, e.g., Johnson, 597 F.3d at 412, 414 (1st Cir.); Green-Younger, 335 F.3d at 108 (2d Cir.); Rogers, 486 F.3d at 248 (6th Cir.); Sarchet, 78 F.3d at 307 (7th Cir.); Brosnahan, 336 F.3d at 677-78 (8th Cir.); Revels v. Berryhill, 874 F.3d 648, 666 (9th Cir. 2017).

Today, we join those circuits by holding that ALJs may not rely on objective medical evidence (or the lack thereof) — even as just one of multiple factors — to discount a claimant’s subjective complaints regarding symptoms of fibromyalgia or some other disease that does not produce such evidence. Objective indicators such as normal clinical and laboratory results simply have no relevance to the


severity, persistence, or limiting effects of a claimant’s fibromyalgia, based on the current medical understanding of the disease. If considered at all, such evidence — along with consistent trigger-point findings — should be treated as evidence substantiating the claimant’s impairment. We also reiterate the long-standing law in our circuit that disability claimants are entitled to rely exclusively on subjective evidence to prove the severity, persistence, and limiting effects of their symptoms.

Because the ALJ’s evaluation of [Appellant’s] symptoms was based on an incorrect legal standard as well as a critical misunderstanding of fibromyalgia, we conclude that it was erroneous.

Id. at 97-98 (citing Johnson v. Astrue, 597 F.3d 409, 412 (1st Cir. 2010); Green-Younger v. Barnhart, 335 F.3d 99, 108-09 (2d Cir. 2003); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 248 (6th Cir. 2007); Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996); Brosnahan v. Barnhart, 336 F.3d 671, 678 (8th Cir. 2003)). Thus, the court found that the ALJ “improperly increased her burden of proof” by effectively requiring her subjective descriptions of her symptoms to be supported by objective medical evidence. Id. at 96. (citation omitted).

The court noted fibromyalgia’s unique characteristics as a disease whose “symptoms are entirely subjective,” with the exception of trigger-point evidence. Id. at 96. Patients usually have a full range of motion, no joint swelling, as well as normal muscle strength and neurological reactions. Id. (citations omitted). However, the court noted the ALJ relied principally on those very results in discounting Appellant’s complaints as inconsistent with the objective evidence and erred by “requiring objective evidence ‘for a disease that eludes such measurement,’ which was doubly erroneous and particularly egregious since Dr. Harper, the treating physician, had explicitly emphasized that fibromyalgia typically did not produce clinical and laboratory abnormalities. Id. (citation omitted).

Moreover, the court found such objective evidence was present in this case, because Dr. Harper, Appellant’s treating physician, made “consistent trigger-point findings”—i.e., tenderness in specific sites on the body — which courts have recognized as the only “objective medical evidence of fibromyalgia.” Id. at 96-97 (citing Brosnahan, 336 F.3d at 678; Johnson, 597 F.3d at 412). The court found the ALJ’s error reflects “a pervasive misunderstanding of the disease.” Id. at 97 (citing Sarchet, 78 F.3d at 306).

In addition, the court found the ALJ failed to comply with SSR 12-2p which recognizes that “symptoms of [fibromyalgia] can wax and wane so that a person may have ‘bad days and good days’” and that the Ruling requires ALJs to “consider a longitudinal record whenever possible” when evaluating a disability claim based on fibromyalgia. Id. at 101. Here, however, the ALJ failed to appreciate the waxing and waning nature of fibromyalgia and to consider the longitudinal record of Appellant’s


symptoms as a whole, in explaining his reasons for discrediting her subjective complaints. Specifically, the ALJ selectively pointed to treatment notes, which described her fibromyalgia symptoms as moderate and ignoring notes showing “persistent pain associated with fibromyalgia,” “intractable cervical pain,” “exquisite tenderness,” and “a significant worsening of pain symptoms,” which made her physical capacities “extremely limited.” Id.

The court specifically addressed the standard of review, acknowledging that in performing substantial evidence review of the ALJ’s findings, it was not proper to undertake to re-weigh conflicting evidence, make credibility determinations, or substitute its judgment for the ALJ’s; however the court also stated:

Yet even under this deferential standard, we do not “reflexively rubber-stamp an ALJ’s findings.” Lewis, 858 F.3d at 870. To pass muster, ALJs must “build an accurate and logical bridge” from the evidence to their conclusions. Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)).

Id. at 95 (citing Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017)). Where, as here, the ALJ selectively cites from the record, has “cherry-picked” from the record to support his conclusions, or has “misstated or mischaracterized” material facts, “a decision based on such errors can hardly be supported by substantial evidence.” Id. at 98.

The court also concluded that the ALJ applied an erroneous legal standard in discrediting the subjective complaints of pain by requiring that they be supported by objective medical evidence:

Since the 1980s, we have consistently held that “while there must be objective medical evidence of some condition that could reasonably produce the pain, there need not be objective evidence of the pain itself or its intensity.” Walker v. Bowen, 889 F.2d 47, 49 (4th Cir. 1989); see also Craig, 76 F.3d at 592-93; Hines, 453 F.3d at 563-65. Rather, a claimant is “entitled to rely exclusively on subjective evidence to prove the second part of the test.” Hines, 453 F.3d at 565. Here, the ALJ disregarded this longstanding precedent and the agency’s own policy by improperly discounting [Appellant’s] subjective complaints of pain and fatigue, based largely on the lack of objective medical evidence substantiating her statements.

Id. at 95-96 (citing Craig v. Chater, 76 F.3d 585, 592-93 (4th Cir. 1996); Hines v. Barnhart, 453 F.3d 559, 563-65 (4th Cir. 2006)). The court further found that the ALJ’s discrediting of the subjective complaints was not only legally erroneous, but also unsupported by substantial evidence. Specifically, the ALJ erred by (1) selectively citing evidence from the record as well as misstating and


mischaracterizing material facts; (2) finding her complaints to be inconsistent with her daily activities; and (3) failing to consider fibromyalgia's unique characteristics when reviewing the medical records. Id. at 98. “Each of these factual errors undermines the ALJ's conclusion that [Appellant] was not disabled.” Id.

The ALJ further erred in assessing Appellant’s daily activities; in assessing disability, the ALJ was required to consider not just the type of claimant’s daily activities, but also extent to which she could perform them, and he failed to do so. Id. at 100. The ALJ selectively cited evidence concerning tasks which she was capable of performing and improperly disregarded her qualifying statements, and failed to “build an accurate and logical bridge” from the evidence to his conclusion. Id. (citations omitted). Moreover, the ALJ provided no explanation as to how the daily activities showed she could persist through an eight-hour workday five days a week with sustained work activities as required by SSR 96-8p, and merely stated in a conclusory manner that her activities were “fully consistent” with his RFC assessment. Id.

Additionally, the Fourth Circuit held that the ALJ erred by discrediting the subjective complaints based partly on a “conservative course of treatment” without narcotic painkillers after 2011, but only antidepressants and nonsteroidal anti-inflammatory pain relievers, because her doctors’ treatment decisions were wholly consistent with how fibromyalgia is treated generally, and Appellant cannot be faulted “for failing to pursue non-conservative treatment options where none exist.” Id. at 102 (citation omitted). The court noted that under SSR 16-3p “[p]ersistent attempts to obtain relief of symptoms, such as increasing dosages and changing medications, trying a variety of treatments, [or] referrals to specialists, . . . may be an indication that an individual’s symptoms are a source of distress and may show that they are intense and persistent” and that she had made each of those very attempts over the years. Id. Thus, the ALJ’s finding of inconsistency between her subjective complaints and her treatment record was erroneous. Id.

While the Fourth Circuit found that Appellant waived appellate review of her argument regarding the weight accorded to her treating physician’s opinion by failing to assert it as a specific objection to the Report and Recommendation, it relied on Thomas v. Arn, 474 U.S. 140, 155, (1985) to hold that discretionary review of the waived issue was warranted. Id. at 103. The court noted that in Thomas, the Supreme Court held that “because the rule [that a failure to file timely objections to the magistrate judge’s report constitutes a waiver of appellate review] is a nonjurisdictional waiver provision, the Court of Appeals may excuse the default in the interests of justice, and concluded that “in some cases, such as this one, we may also “excuse the default in the interests of justice.” Id. Discretionary review was warranted as no prejudice or procedural unfairness would result from review, the issue involved a legal question whose resolution did not require additional factfinding, the issue had been adequately briefed by both parties, and proper disposition of the issue was beyond doubt. Id. at 105-106.

The court concluded that, properly applying the former treating physician rule, Dr. 14

Harper’s opinion as to the severity, persistence, and limiting effects of Appellant’s impairments due to fibromyalgia was entitled to controlling weight because he diagnosed her fibromyalgia based on consistent findings of diffuse trigger points, in accordance with the diagnostic criteria of the American College of Rheumatology, his opinion was not contradicted by other substantial evidence in the record, and his opinion was consistent with his 20 years’ worth of treatment notes and other physicians’ medical findings. Id. at 107. The court also found the ALJ erred by improperly substituting his own opinion for Dr. Harper’s based on his own lay views of what an MRI could demonstrate, as ALJs may not draw their own conclusions from medical imaging, as they lack the expertise to interpret it. Id. at 108. The ALJ further erred by according more weight to the state agency consultants’ opinions than the opinion of Dr. Harper, as given the unique nature of fibromyalgia, its symptoms cannot be properly assessed and verified by a non-treating or non-examining source. Id. at 110-11 (citation omitted).

In determining that remand for award of benefits was warranted, the Fourth Circuit cited its authority to award disability benefits without remand where the record clearly establishes the claimant’s entitlement to benefits and another ALJ hearing on remand would serve no useful purpose. Id. at 111 (citations omitted). The court found the undisputed evidence compels the conclusion that Appellant was unable to sustain full-time work — eight hours a day, five days a week — during the relevant period due, in part, to her difficulty performing daily activities; her record of flare-ups, on and off for at least half a month at a time; her difficulty working for even four hours a week and her extensive medical records corroborating the severity, persistence, and limiting effects of her impairments. Id. at 111-112. The court found it was evident that she could not sustain any type of full-time work. Id. at 112.

The Fourth Circuit concluded that the record as a whole clearly established Appellant’s legal entitlement to disability benefits. Moreover, remanding the case for yet another ALJ hearing would be not only pointless, but also unjust as she has been denied disability benefits for ten years, solely because of the agency’s errors. Id. “After multiple denials and reconsideration requests, two ALJ hearings, and two federal suits, we simply cannot delay justice any longer. Therefore, we reverse and remand the case to the Commissioner for a calculation of disability benefits.” Id.

Topics addressed:

  • Specific impairments: Fibromyalgia

  • Fibromyalgia - objective medical evidence not needed to prove impairment

  • Fibromyalgia – trigger points only objective evidence for substantiating


  • Fibromyalgia – waxing and waning nature; longitudinal record must be


  • Treating physician (old law) - weight

  • Improper substitution for medical experts

  • Subjective complaints - improper focus on objective evidence


  • Subjective complaints – daily activities

  • Subjective complaints – treatment regimen

  • Substantial evidence standard – persistent efforts to obtain relief

  • Substantial evidence standard – mischaracterizing/misstating the record

  • ALJ must build an accurate and logical bridge from the evidence to his


  • Waiver - failure to raise an issue before the district court

  • Remand for award of benefits - entitlement to benefit clear from the record.

  • Remand for award of benefits - due to long delay

    Rulings addressed:

  • Social Security Ruling 96-2p (old law)

  • Social Security Ruling 96-8p

  • Social Security Ruling 12-2p

  • Social Security Ruling 16-3p